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P-B (Children) [2009] EWCA Civ 143

Appeal by local authority against the imposition of a penal notice against their officers to enforce a contact order under s34 of the Children Act 1989. Appeal allowed to a limited extent.

The appeal arose out of care proceedings in which it was concluded that one of the children involved, now in foster care, should have contact with his natural father every Sunday. The foster care father initially opposed this and frustrated the contact. In response the case judge made a contact order and attached a penal notice, in an exceptional case and as a last resort, because of the local authority's failure to ensure that contact was maintained.

By the time of this appeal contact was being working, but Wall LJ found that i) there was power to enforce the order by committal noting that under s33 of the Children Act the local authority had the "power to determine the extent to which others" excercise the LA's parental responsibility (ie the foster father); ii) the judge had the power to attach a penal notice sitting as a county court judge; iii) the judge had been wrong to sit as a High Court judge under s9 of the Supreme Court Act without hearing argument on the issue or considering transfer and iv) the penal notice had now served its purpose so was struck out.


Neutral Citation Number: [2009] EWCA Civ 143
Case No: B4/2008/2713
Her Honour Judge Nasreen Pearce, sitting in the
Luton County Court on 16 and 23 October 2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/02/2009
Before :
- - - - - - - - - - - - - - - - - - - - -
Between :

Local Authority (Appellant)

 - and - 

HP and MB (Respondents)
P-B (Children) 
- - - - - - - - - - - - - - - - - - - - -
Dermot Main Thompson (instructed by the Local Authority) for the Appellant
Ms Marsia Hyde (for the Guardian) and Mr Daniel Kingsley (for the Father) did not appear but provided position statements in writing of their representative positions

Hearing date: 18th December 2008
- - - - - - - - - - - - - - - - - - - - -
Lord Justice Wall:
1. This is the judgment of the court.

2. As presented to us, this appeal, for which Wilson LJ gave permission on paper on 17 November 2008 raises a short point which, according to the considerable industry of counsel, appears not to have been decided before. As argued before us, it can be formulated in the following way:

does a judge sitting in the county court have the power to attach to a contact order made in public law proceedings under section 34 of the Children Act 1989 a penal notice addressed to the local authority stating that if the order is not obeyed, the local authority will be in contempt of court and the officer responsible for the implementation of the order – alternatively the Head of Children’s Services- may be sent to prison?

3. In our judgment, however, although the judge did attach a penal notice to her order, and the appeal is brought against the imposition of the penal notice, the more profound and underlying question is whether or not an appropriately worded order made under section 34 of the Children Act 1989 in the county court is enforceable by committal.

4. No committal proceedings have, to date, been issued for the very simple reason that the order for contact made by the judge has now been fully implemented. However, two further questions inevitably arise if the answer to both the questions posed in paragraphs 2 and 3 above is “yes” namely; was it, on the facts of this case, an appropriate exercise of the power for such a notice to be imposed; and, if the answers to all the questions so far identified is “yes”, should the penal notice remain in place now that contact, it appears, is working smoothly? For obvious reasons, we will postpone consideration of the final two questions until we have answered the first two.

5. For those, however, who are not inclined to read any further, we will say at once that in our judgment the answer to the question posed in paragraph 3 above is “yes”, as is the answer to the question posed in paragraph 2.  The answer to the first of the two question posed in paragraph 4 is also yes. However,  on the particular facts of this case the answer to the final question is, in our judgment “no”. The appeal will, accordingly, be dismissed in relation to the question of jurisdiction, but will be allowed to the extent that the penal notice will be deleted from the order with immediate effect.

The appeal
6. This judgment sets out our reasons for reaching these conclusions.  We propose henceforth to refer to the Children Act 1989 as “the 1989 Act”; to the Family Proceedings Rules 1991 in their current form as “FPR 1991”; to the Rules of the Supreme Court and the County Court  Rules in their current form as “RSC” and “CCR” respectively, and to the Civil Procedure Rules 1998 as “CPR”.

7. When the appeal came on for hearing  on 18  December 2008, the only appearance was by Mr Dermot Main Thompson on behalf of the appellant local authority. The reason for this appears in paragraph 21 below. Mr Main Thompson had, however, put in a full and detailed skeleton argument both before the judge and in this court and, as the court on 18 December was under considerable pressure of time, we discouraged further oral submissions. We reserved judgment without, however, giving any indication of the likely outcome of the appeal.

The facts giving rise to the appeal
8. The appeal arises from a decision of Her Honour Judge Nasreen Pearce, sitting in the Luton County Court on 16 and 23 October 2008. She had before her county court care proceedings under Part IV of the 1989 Act relating to three children, whom we will call PB, AB and SB although we are only directly concerned in this appeal with AB, who is a boy now aged 9. For the record, however, PB is a girl now aged 13 and SB is a boy now aged 7.

9. AB is in the interim care of the local authority and is living with foster parents. The final hearing of the care proceedings has been fixed for April 2009, and the local authority’s care plan for AB is that he should remain in long term foster care.

10. The mother of the three children is HP. Mr B (as we shall call him) is the father of AB’s younger half brother SB, who lives with Mr B during the week. However, although no longer living with AB’s mother, Mr B has an excellent  relationship with AB, who treats Mr B as his father. Thus the contact order to which the judge attached a penal notice was in part designed to preserve Mr B’s relationship with AB, as well as enabling AB and SB to spend time together. Contact with Mr B and SB was, the judge found, a rewarding experience for AB.

11. The local authority had placed AB with foster parents in Lincolnshire, some considerable distance from Mr. B’s home. Mr B, accordingly, wanted contact to take place on Sundays, a day which fitted in with his employment as a taxi driver, and which enabled the two boys to spend time together. Mr. B was willing to drive to wherever AB was, taking SB and a local authority supervisor with him.

12. Unfortunately, AB’s foster father appears not only to have said in terms that that he would not facilitate Sunday contact; but also to have gone further and to have made it clear that if Sunday contact was ordered by the court, he would terminate AB’s placement. This was, unsurprisingly, unacceptable to the judge, who described it (and the local authority’s case that there should be no Sunday contact) as “an unjustifiable attempt to dictate the court’s order as to contact”.

13. The judge, who plainly knew the case well,  was also concerned about the foster father’s hostility to Mr B which, she found, a social worker had accepted in cross-examination on an earlier occasion. She also found that there had been “total non-compliance” with an order that AB and Mr B should have telephone contact. The foster father had also ignored advice not to record such telephone conversations as there had been. She found that the foster father wanted “total control”.

14. Unsurprisingly, the judge was not best pleased with this state of affairs, and on 16 October 2008, at the conclusion of what is a long and careful judgment, she expressed herself trenchantly, in the following terms:-

51. If there is going to be a breakdown of the placement and (the foster father) is child focused, then he will follow any proper structured planned removal of the child at a time and at a place when the placement is found, which is appropriate to the needs of the child. If (the foster father) wants removal forthwith, then he is not fit to have the care of this child.

52. I am not going to be threatened by any person. I have carried out a balancing exercise. I have applied the welfare checklist to this case. Although I have not made reference to each and every criteria (sic) set out in section 1 of the (1989 Act), I have those factors very much in mind, and I hope I have  dealt with those issues in the course of my judgment. It is because of my concern for the welfare of this child, and the attitude of the foster carer, that the court has to take a robust view and make a robust determination.

53. There will be Sunday contact. I take on board what the guardian has said about fortnightly contact. I think once a month Sunday contact for three hours must be permitted. In order to make sure that this contact takes place, I am going to make a specific order to that effect, and there will be a penal notice attached to the order.

54. I am saddened by the fact that (the foster father) is still ignoring the telephone contact order I made on 13 August and there are difficulties about that.  There will also be a penal notice attached to that contact order, which will provide that, during those telephone contacts, there is to be no tape recording of the telephone contact when it takes place. That will be a condition of the order I make.
(emphases supplied)

15. For the local authority, Mr Dermot Main Thompson makes a number of complaints about the manner in which the judge went about imposing a penal notice. There is, however, no appeal against the contact order itself, and the manner in which the judge went about her task seems to us to go to discretion, rather than jurisdiction. We do not, accordingly, propose at this point to address Mr Main Thompson’s arguments on process.

16. The case came back before the judge on 23 October 2008. Once again, we have a transcript of the judgment which the judge gave on that day.  The judge explains that there had been a conflict between the parties about the order she had made on 16 October. She explains that it was clear to her that the local authority was not properly addressing the issues. She records being told that, despite her order, Mr B and AB had not had face to face contact for two months. She says:-

It has come to the point where the court has been totally frustrated with all the attempts it has made,  since August until now, to ensure that this matter can be dealt with in a reasonable way, with negotiations taking place, and the local authority imposing their authority on their own foster carer. They have not done that. It is not simply a question of face to face contact. There were also difficulties over telephone contact.

17.  The judge addressed the question of jurisdiction to impose a penal notice in the following way: -

20. Mr Main Thompson, on behalf of the local authority submits before me today that I can only attach a penal notice if there is a defined contact order, but there has never been a defined contact order and, therefore, I should not do it. I can only impose a penal notice  when I make a defined contact order, and then make other attempts to ensure that the court order is complied with and, because that has not been done, I have no authority to endorse a penal notice on the court order.

21. I disagree with him. This is a local authority case, and the court does not, at the first instance,  go along with imposing a contact order. One treads along, on the basis that the local authority will act responsibly and there will be an agreement on contact.  There was an agreement on contact in relation to, for example, the telephone contact and the other contact that was taking place. The local authority, however, did not ensure that that contact occurred agreeably and appropriately as it was agreed.

22. There were many instances, which I have already referred to, when the local authority did not actually do what they should have done, as I have indicated. In my judgment, before a penal notice is imposed, particularly in a case such as this (which is an exceptional case)  the court does not have to make a defined contact order and then wait for another event to occur, when the court is clearly faced, as it is in this case, with continued, repeated breaches of arrangements that have been made, notwithstanding the fact that the court had given indications as early as August that, unless the arrangements are properly complied with, a penal notice would be endorsed.

23. On the last occasion, during the course of the hearing, I mentioned the issue of a penal notice. There was never any suggestion that I neither had the power to do so; nor that I should delay imposing such a notice until the local authority has had the opportunity of complying with a defined contact order.
(emphasis supplied)

18. After further references to the conduct of the local authority and to the court having a gun pointed at its head, the judge says:-

27. In so far as the argument is raised that I do not have the power to ensure that court orders are complied with by imposing a penal notice, Mr Main Thompson has pointed out that (CCR) Order 29 rule 1 has been incorporated in the (FPR) 1991 4.21(A). I have considered that, and the submission that those provisions only apply to the specific conditions which are mentioned within that rule. The section 34(4) application under the (1989 Act) is not referred to in those rules and therefore the court has no authority to impose a penal notice on an order made under section 34(4).

28. To that I say that the (FPR) are subject to the (CPR) and it is made clear within the (FPR) (in rule 1.3) that, where there is a lacuna within the (FPR) I can apply the normal (CPR). If it was ever the intention of the drafters of the legislation and the statutory instrument that the court should not impose a penal notice against a local authority, then it would have specifically said so, as they did with the provision relating to section 8. It does not do so. If that was the case, it would make a mockery of any court order made against any public body. Furthermore, as I said earlier, I find that there is authority for me to make such an order, because there is provision to do so under the CPR

29. It is on that basis that I find  that I have the authority to make such an order. If I am wrong on that, I have specifically today sought permission to sit as a section 9 judge and, under the inherent jurisdiction of this court, I have the power to impose such an order when there is a blatant repeated non-compliance of arrangements for contact made, and the local authority have clearly shown that they are more beholden to the foster carer than their duty towards the parents and the child.

30. Mr. Main Thompson submits that there is no precedent for a penal notice to be imposed on a local authority. This is an exceptional case. The court does not normally impose a penal notice except as a last resort. This court has bent over backwards to get this local authority to do what is best for the child and in that child’s interests. They have failed in that duty, and it is in these circumstances that exception forces the court to take exceptional steps.

31. It is in those circumstances that I find myself unable to do anything else to ensure that the local authority will, in fact, now do as they are supposed to do, rather than follow the guidance given to them by their foster carer, over whom I am afraid they have absolutely not control The penal notice will, therefore, remain as I directed in my judgment last week.

19. The terms of the order for face to face contact made by the judge are, we think, important:-

The (local authority) shall make (AB) available for supervised contact with (Mr. B) on one Sunday every month for a period of 3 hours at a time at a venue to be agreed commencing Sunday 26 October 2008.

20. There was then an order for specified telephone contact, followed by the attachment of the penal notice to both contact orders. Further orders dealt with service and the abridgement of time in the event of a breach. The judge refused permission to appeal on the basis that the application had no merit; and that that there were no compelling or other public policy reasons why permission should be granted.

21. Before discussing the jurisdiction question, it needs to be recorded that, since October 2008 Mr B has been enjoying contact with AB pursuant to the judge’s order. The local authority has retained the placement, but has arranged weekend respite care, which enables Mr. B to have contact at weekends. It is for this reason that neither Mr B nor AB’s mother was represented before us, although both Mr AB and the guardian filed helpful position statements.  From their perspective, the problem has been resolved.

Question 1: did the judge have the power to enforce by committal the order for contact which she undoubtedly made under section 34 of the 1989 Act?
22. This seems to us the first and critical question. It was not, however, one addressed by the parties who concentrated on the imposition of the penal notice. It must follow, however, that the judge could only impose a penal notice if she had the jurisdiction, sitting as a judge in the county court, to make a committal order against the local authority in the event of a breach of the order.

23. It is, we think well established, that for committal proceedings to be brought to enforce a mandatory order; (1) a person or body must be required by a judgment or order to do an act within the time fixed by the order or any subsequent order and (2) the person or body must have refused or neglected to do the act within the time fixed by the order: see CCR Rule 29.1 (set out at paragraph 40 below).

24. In our judgment, the contact orders made by the judge fulfil the relevant criteria.  The order was addressed, as section 34(1) of the 1989 Act  requires, to the local authority. It required the local authority make an identified child in its care available for supervised contact with Mr. B on specific days, namely, one Sunday every month for a period of 3 hours at a time and at a venue to be agreed commencing Sunday 26 October 2008. It is true that the order is vague as to venue and the precise timing of the contact, but in our judgment, the order is sufficiently clear, and fulfils the terms of CCR Ord. 29.1. If the local authority had failed to make the child available by the end of the last Sunday in any month, it would clearly have failed to comply with the order. We are therefore of the view that in principle the contact order is capable of being enforced by committal.

25. However, for the local authority, Mr. Main Thompson submitted that the court could not enforce by committal an order made in public law proceedings under section 34 of the 1989 Act against a local authority.  In an elegant and scholarly skeleton argument he essentially repeated the submissions which had not found favour with the judge.

26. The material parts of section 34 of the 1989 Act currently read as follows:-

34 Parental contact etc with children in care
(1) Where a child is in the care of a local authority, the authority shall (subject to the provisions of this section) allow the child reasonable contact with—

(a) his parents;
(b) any guardian [or special guardian] of his;
[(ba) any person who by virtue of section 4A has parental responsibility for him;]
(c) where there was a residence order in force with respect to the child immediately before the care order was made, the person in whose favour the order was made; and
(d) where, immediately before the care order was made a person had care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children, that person.

(2) On an application made by the authority or the child, the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and any named person.

(3) On an application made by—

(a) any person mentioned in paragraphs (a) to (d) of subsection (1); or
(b) any person who has obtained the leave of the court to make the application,

the court may make such order as it considers appropriate with respect to the contact which is to be allowed between the child and that person.

27. Mr Main Thompson pointed out the Mr B was not AB’s father, and thus fell within section 34(2) of the 1989 Act. This is, of course, true, but is, for present purposes, immaterial.  Mr. Main Thompson also pointed out that no party had applied for a penal notice to be attached to the order, and that the judge had done so of her own motion. This is, once again, true, but in our judgment  judges dealing with children under the 1989 Act  have a very broad procedural discretion. Provided the process is fair (or, to put the matter in ECHR terms, Article 6 compliant) no criticism can properly be made of judges who make lawful orders of their own motion.  Much of Mr. Main Thompson’s skeleton dealt with the local authority’s perception of the merits. We are, however, at this point dealing with a pure point of jurisdiction, and the merits are immaterial.

28. The principal thrust of Mr. Main Thompson’s submissions was that  FPR rule 4.21A (which legislates for the imposition of penal notices) applies only to private law orders under section 8, 14A, 14(2)(b) 14C(3)(b) and 14D of the 1989 Act. The FPR did not provide for committal orders or the attachment of penal notices against a local authority responsible for the provision and facilitation of contact or, for that matter to any public law orders. Section 34 of the 1989 Act was thus outwith rule 4.21A, which was exhaustive. Accordingly, the judge had had no jurisdiction to impose a penal notice.

29. It is, we think, at this point convenient to set out FPR Rule 4.21A, which is in the following terms:-

4.21A Attachment of penal notice
CCR Order 29, rule 1 (committal for breach of order or undertaking) shall apply to section 8 orders and orders under section 14A, 14B(2)(b), 14C(3)(b), or 14D as if for paragraph (3) of that rule there were substituted the following—

“(3) In the case of a section 8 order (within the meaning of section 8(2) of the Children Act 1989) or an order under section 14A, 14B(2)(b), 14C(3)(b), or 14D of the Children Act 1989 enforceable by committal order under paragraph (1), the judge or the district judge may, on the application of the person entitled to enforce the order, direct that the proper officer issue a copy of the order, endorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2); and no copy of the order shall be issued with any such notice endorsed or incorporated save in accordance with such a direction.

30. Mr Main Thompson amplified his basic submission by pointing out that because AB is in the interim care of the local authority, no section 8 order, other than a residence order (which would have the effect of terminating the interim care order) could be made in relation to him. Mr Main Thompson further submitted that the judge had been wrong  to  resort to FPR rule 1.3 because such an approach assumed a lacuna in the rules. Mr. Main Thompson submitted that no such assumption could be made: the draftsman, he argued, had plainly intended to exclude public law orders from the committal regime.

31. Mr. Main Thompson set out the terms of FPR rule 1.3, which are as follows:-

1.3 Application of other rules
(1) Subject to the provisions of these rules and of any enactment the County Court Rules 1981 and the Rules of the Supreme Court 1965 shall apply, with the necessary modifications, to family proceedings in a county court and the High Court respectively.

(2) For the purposes of paragraph (1) any provision of these rules authorising or requiring anything to be done in family proceedings shall be treated as if it were, in the case of proceedings pending in a county court, a provision of the County Court Rules 1981 and, in the case of proceedings pending in the High Court, a provision of the Rules of the Supreme Court 1965.

32. Finally, Mr Main Thompson also pointed to the general undesirability to making orders against those who were fulfilling a statutory function. Other means were available – such as the summoning to court of the appropriate representative of the local authority. Committal was a cumbersome and expensive procedure, which Parliament had chosen to exclude from orders made under section 34 of the 1989 Act.

The argument for Mr B
33. For Mr. B, Mr. Daniel Kingsley put in a position statement. Mr B’s public funding had been embargoed by the Legal Services Commission for the appeal, and he was thus unable to appear. The position statement was, however, drafted on a pro bono basis, and we are grateful to Mr. Kingsley for the assistance which this document gave us, albeit that he has provided us with a great deal of detail, which we do not think it necessary to reproduce.

34. Mr. Kingsley pointed out that neither the children’s guardian nor Mr B had requested that a penal notice be attached to the order, nor had any submissions on the point been addressed  to the judge on Mr. B’s behalf. The initiative for it had come exclusively from the judge. Moreover, Mr B was at pains to point out that contact was now progressing satisfactorily, and his position remained one of neutrality.

35. However, as a matter of law, Mr. Kingsley submitted that a judge hearing proceedings under Part IV of the 1989 Act in the county court did have the power to enforce obedience to an order made in public law proceedings against a local authority and that, on the facts, the imposition of a penal notice had been a proper exercise of judicial discretion.  He relied on the recent decision of this court in Re S (A Child) [2008] EWCA Civ 1140 (Re S), in which a local authority had cynically disregarded an undertaking it had given to file a Pathway Plan by a given date relating to a child in its care who was shortly to be 18. On the basis of the undertaking the judge had by consent discharged the care proceedings relating to the child.  When the plan was not produced, the parents applied for permission to appeal.

36. This court (Ward and Wall LJJ) gave permission to appeal and allowed the parents’ appeal. It substituted an order that the Pathway Plan be produced by a given date prior to the child’s 18th birthday, and attached a penal notice to the order. Ward LJ, who gave the first judgment, said:-
To make matters abundantly plain, and to demonstrate to the local authority that this is an order which we expect to be obeyed, this order will be endorsed with a penal notice and the director is to be given the assurance by those who represent him today that his contemptuous disregard of this order could lead to an application to commit him and, without prejudging that matter, my preliminary view is that it stands a good prospect of success and he should be advised accordingly.

37. Counsel for the local authority in Re S had not sought to argue that the court at first instance had no jurisdiction to make a committal order, nor that this court did not have jurisdiction to attach a penal notice to its order. Mr. Kingsley further submitted that since Judge Pearce had been sitting as a High Court Judge in October 2008, she was entitled to exercise the inherent jurisdiction of the High Court to attach a penal notice to her order. We will return to this latter point later in the judgment.

38. Mr. Kingsley further argued, however, that the judge’s jurisdiction did not depend upon her temporary status as a judge of the High Court.  Whilst he acknowledged that there were no specific provisions within FPR 1991 governing the imposition of penal notices in care proceedings, the absence of such provisions did not mean that the county court lacked the jurisdiction to ensure that its orders were obeyed by committal and by the attachment of penal notices to them. He cited FPR rule 1.3, which we have already set out at paragraph 33 above.

39. Mr. Kingsley followed these submissions with an extract from page 1886 of the 2008 Family Court Practice: -

CCR and RSC “shall continue to apply” (FPR rule 1.3(1)) —The application of CCR and RSC in their original form (ie those rules in force immediately before 26 April 1999) is mandatory in the absence of other, or inconsistent, provision in these rules or in any other enactment. Thus, for example, the provisions of RSC Ord 38 and CCR Ord 20, concerning evidence (especially leave to adduce expert evidence: RSC Ord 38, r 36 and CCR Ord 20, r 27) apply in family proceedings.

“family proceedings” (r 1.3(1), (2))—See “family proceedings” under r 1.2.
Civil Procedure Rules 1998—With effect from 26 April 1999 the Civil Procedure Rules 1998 came into operation for all civil proceedings, save for “family proceedings” as defined by Matrimonial and Family Proceedings Act 1984, s 32 (CPR 1998, r 2.1(2)). The result of this is that there are three regimes for the various forms of family process referred to in Family Court Practice (see Table below) namely:

(a)  the original RSC and CCR which continue to govern family proceedings for as long as CPR 1998 do not apply directly to family proceedings within the meaning of MFPA 1984, s 32;
(b)  various of the existing RSC and CCR (as modified to bring them into line with CPR 1998 and set out in Schs 1 and 2 thereto) continue to apply (such as the rules relating to enforcement of orders); and
(c)  the Civil Procedure Rules 1998 which are applicable to proceedings under Inheritance (Provision for Family and Dependants) Act 1975, Protection from Harassment Act 1997, Trusts of Land and Appointment of Trustees Act 1996, s 14, judicial review and appeals to the Court of Appeal.

40. Mr Kingsley submitted that the enforcement of orders in the county court was, accordingly, governed by RSC and CCR in their original and modified forms, and by CPR. Mr Kingsley then cited CCR Order 29, rule 1 which, he submitted, remained the provision which the county court used to deal with the enforcement of family orders. The relevant parts of the rule as amended by the FPR read as follows:-

(1) Where a person required by a judgment or order to do an act refuses or neglects to do it within the time fixed by the judgment or order or any subsequent order the judgment or order may be enforced, by order of the judge, by a committal order against that person or, if that person is a body corporate, against any director or other officer of the body.
(2) [deals with service]
(3) In the case of a section 8 order (within the meaning of section 8(2) of the Children Act 1989) or an order under section 14A, 14B(2)(b), 14C(3)(b), or 14D of the Children Act 1989 enforceable by committal order under paragraph (1), the judge or the district judge may, on the application of the person entitled to enforce the order, direct that the proper officer issue a copy of the order, endorsed with or incorporating a notice as to the consequences of disobedience, for service in accordance with paragraph (2); and no copy of the order shall be issued with any such notice endorsed or incorporated save in accordance with such a direction.

41. Mr. Kingsley submitted that as a matter of policy it must be right that the county court had the power to enforce a section 34 order made in public law proceedings under the 1989 Act by way of committal, and CCR Order 29 made it clear that it did. The absence of a specific provision in the FPR was  accordingly not persuasive: CCR or CPR plainly filled the gap and applied. It followed that a circuit judge must have the power to impose a penal notice if he or she thought it appropriate in the circumstances of the particular case.

The position of the guardian
42. Given her recognition that the decision in this case would have implications for other cases, the children’s guardian likewise filed a position statement prepared on her behalf by Miss Marcia Hyde of counsel. She was, of course, particularly concerned that the order had been made in the best interests of AB, and that Parliament had entrusted questions of contact between  parents and others and  children in local authority care to the courts. She was also concerned with the ECHR Rights of the various parties. She made express reference to the President’s Direction (Committal applications and proceedings in which a committal order may be made) [2001] 1 FLR 949.

43. Miss Hyde submitted that FPR rule 4.21A was not exhaustive, and merely stipulated a particular procedure (her emphasis) for orders under sections 8 and 14 of the 1989 Act. The real question, she submitted, what whether or not orders under section 34 of the 1989 Act  fell within CCR Order 29 rule 1. She submitted that, as a matter of law, they did. In the alternative, the judge had been right to treat CCR Order 29.1(3) as permitting her to apply CCR to a public law contact order. Finally, she submitted that if she was wrong about that, the judge had been sitting as a judge of the High Court and had jurisdiction in that capacity to impose a penal notice.

44. We prefer the arguments of Mr. Kingsley and Miss Hyde on the jurisdiction point. We will deal separately with the status of the judge.

45. We start from the premise that the contact ordered by the judge was in the best interests of the child, and that it was being frustrated – or, at the lowest, it was in danger of being frustrated by the local authority foster father.  On any view it was in AB’s interests to see Mr  B and his half brother, and the order for Sunday contact  was one which the judge was plainly entitled to make in the exercise of her discretion.  It must follow, we think, that the order was properly enforceable against the local authority, to which it was – correctly - addressed: see section 34(1) of the 1989 Act. In short, the order was enforceable by committal.

46. Furthermore, the local authority not only had parental responsibility for AB, it also had the power, given to it under section 33(3)(b) of the 1989 Act to “determine the extent to which” others might meet their parental responsibility for AB. With that power comes the responsibility to obey contact orders made by the court under section 34. Above all, it is plain that Parliament has left the question of contact between individuals and children in care to judges, not to the discretion of local authorities. For present purposes, perhaps, it is sufficient to note that  there is no appeal against the contact order.

47. There is, we think, no dispute that the county court in ordinary civil proceedings not only has the power to make orders and injunctions against local authorities, but also has the power to enforce them by committal. Such orders are, no doubt rare because local authorities are not only creatures of statute, but, in the main, law abiding. In any event, Mr. Main Thompson properly conceded that the court had jurisdiction to attach a penal notice to injunctive or directive orders (for example for the service of documents). He submitted, however, that an order for contact was not in this league, particularly when the local authority had given assurances that contact pursuant to the order of the court would be facilitated.

48. We note in passing that in Re S (supra) Ward and Wall LJJ, plainly incensed at a local authority’s failure to honour an undertaking, imposed a penal notice directed to the Head of Children’s Services on the order made by this court. We have, however, already made the point that the local authority in that case did not argue that the court’s order was not enforceable at first instance by committal, and it is plain from the report that no authority was cited to the court either for or against the proposition that a penal notice could not be attached to the order.

49. It would, in our judgment, be an extraordinary state of affairs if a circuit judge was unable to enforce an order made under section 34 of the 1989 Act. Since at the date of the hearing before Judge Pearce the only means of enforcement of her contact order was by way of committal (however unusual such an order might be) the jurisdiction to order committal must, in our judgment, exist, as must the power to warn the local authority in advance by way of penal notice of the consequence of its disobedience of an order directed to it.

50. We agree with Miss Hyde that Parliament has entrusted the carefully constructed contact regime relating to children in care in the hands of the court. In our judgment it follows that FPR 4.21A, which is directed to private law proceedings, is not exhaustive, but that since, on its face, it is not expressed to apply to orders under section 34 of the 1989 Act. CCR Order 29 rule 1 is available to fill the gap.

Question 2: Did the judge have power to impose a penal notice?
51. If, as we think, the court had power to enforce its order by committal, it also had power to attach to the order a penal notice.

52. We are therefore of the view that the judge had jurisdiction, sitting as a circuit judge in the county court, to impose a penal notice on a contact order made under section 34 of the 1989 Act.

Was it necessary or appropriate for the judge to assume the powers of a High Court judge under section 9 of the Supreme Court Act 1981 (the 1981 Act)?
53. In our judgment, the answer to both limbs of this question is “no”. Whilst flexibility and an element of procedural informality may be necessary in family proceedings relating to children, the status of the proceedings and of the tribunal hearing them are both important questions.

54. Section 9(1) of the 1981 Act empowers a circuit judge to sit as a judge of the High Court “at the request of the appropriate authority”. The “appropriate authority” is defined in section 9(2) of the 1981 Act. 

55. We fully accept that section 9 of the 1981 Act is designed to enable experienced circuit judges, such as Judge Pearce, to sit as judges of the High Court in specified circumstances and, in particular, when requested to do so, to hear certain difficult cases, which are in the High Court and which would otherwise have to be heard by a judge of the Family Division.

56. What the judge said on 23 October 2008 in the instant case is that she had “specifically today sought permission to sit as a section 9 judge” so that she could exercise the inherent jurisdiction of the High Court: - see  paragraph 29 of her judgment, which we have set out at paragraph 18 above.

57. In our judgment, of course, it was not necessary for the judge to seek permission to sit as a High Court judge in order to attach a penal notice to her order. In any event, however, we do not think that it was appropriate for her to exercise the powers of a High Court judge in proceedings in the county court.  Had she concluded that the powers of a High Court judge were needed for the case, (1) she should have heard argument on the point:  and (2) if, after hearing submissions, she remained of the same view, she could have transferred the case to the High Court. She should then have considered whether she should continue to hear it.  If, following transfer, she had considered that she should retain the case she could then have acted under the authority she had obtained to sit as a judge of the High Court. 

58. We do not say that there will never be occasions when it is appropriate for a circuit judge hearing a child case temporarily to transfer the proceedings to the High Court in order to give him or herself powers under the inherent jurisdiction which he or she would not otherwise have. In our judgment, however, this is not one of them. This is a county court case and it should be clearly understood that, just as one and the same application cannot be heard in two different courts simultaneously, so a judge cannot sit in both the High Court and the county court simultaneously in relation to the same matter.  What the judge was doing was seeking powers which she believed she might not have in order to produce a particular result.  In our judgment, this was not an appropriate course of action for her to take.

59. In our judgment, this is the only procedural argument open to Mr Main Thompson, but for the reasons we have already given, it does not affect the result, since in our view the judge plainly had jurisdiction in the county court for the course which she had decided to take. It has, however, influenced our view about whether or not the penal notice should stand.

60. The two cases on which Mr. Main Thompson relies do not, we think, assist him. Quite apart from the fact that both were decided before the implementation of the 1989 Act and FPR,  D v D seems to us authority for the proposition that committal will not lie in relation to the breach of an order which does not require a party either to perform an act, or to abstain from doing it. The arguments about a penal notice in that case were, accordingly, irrelevant. To put the matter another way, the order of the court was that “[the mother] do have access”: such a form of words was not capable of giving rise to a committal order against the father. By contrast, in the present case, the order of the court is that the local authority “shall make the child (AB) available for supervised contact” on specific days at specific intervals. Such an order, in our judgment, is plainly enforceable by committal.

61. In our judgment, Ansah v Ansah remains good law, as authority for the proposition for which Mr Main Thomson cites it, namely that in family proceedings, committal orders should be orders of the very last resort. In our judgment, however, it does not advance his case.  We are nowhere near committal in the instant case. The judge was simply serving forceful notice on the local authority that she expected her order to be obeyed. As a matter of judicial discretion, we think she was entitled to do so.

The final question: should the penal notice remain in place now that contact, it appears, is working smoothly?
62. Strictly speaking, this should be a matter for the judge. Furthermore, since all the judge had done by imposing a penal notice on her order is to make the local authority aware that she expects it to be obeyed, there is a powerful argument for doing nothing, and leaving the notice in place.

63. We are, however, mindful of a number of factors. The first is, of course, that the judge has made her point. She had jurisdiction, and the exercise of her discretion in imposing the notice has been upheld.

64. Secondly, however, it is plain from everything we have been told, that contact is currently working well between Mr. B and AB.  In this respect, therefore, the notice  has served its purpose. Neither Mr B nor the children’s guardian actively seeks its continuation.

65. It would, of course, be open to us to direct that an application should be made to the judge to discharge the penal notice in the light of subsequent events. This would be in recognition of our view that, whilst the jurisdiction exists, and the discretion was, on the facts of the case, properly exercised, the imposition of a penal notice on an order made under section 34 was exceptional, and now falls to be re-examined in the light of events since October 2008.

66. We are, however, conscious of the fact that a further appearance before the judge on this point will simply increase the costs. We are also conscious of the underlying philosophy of the 1989 Act, namely that orders should only be made when they are necessary, and better for the child than making no order.

67. Finally, we take into account the fact that the local authority is highly sensitive to the existence of the penal notice, and that it would not be right, in our judgment, for any committal proceedings to be instituted without a further warning being given to the local authority and for the local authority to ensure that contact was maintained. As we have already said, however, it appears that contact is currently working well.

68. In all the circumstances of the case, therefore, we have concluded that, as it appears to have served its purpose, we should strike out the penal notice with immediate effect.

69. The appeal will, accordingly be dismissed on the question of jurisdiction but allowed in relation to the continuation of the notice. Paragraph (5) of the order made by Judge Pearce on 16 and 23 October 2008 will be deleted with immediate effect, and to that limited extent the appeal will be allowed.